Free Response to Motion - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ SHELDON PETERS WOLFCHILD, et al., ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA ) ) Defendant. ) ____________________________________)

Case No. 03-2684L Hon. Charles F. Lettow Electronically filed on April 26, 2007

DEFENDANT'S RESPONSE TO VASSAR GROUP'S MOTION TO AMEND COMPLAINT TO ADD AND REMOVE PLAINTIFFS, AMEND THE CAPTION TO REMOVE CERTAIN NAMES AND REMOVE JOHN DOE PLAINTIFFS (Dkt 451) MATTHEW J. MCKEOWN Acting Assistant Attorney General Environment and Natural Resources Division LAURA MAROLDY Natural Resources Section Environment and Natural Resources Division United States Department of Justice Benjamin Franklin Station, P.O. Box 663 Washington, D.C. 20044-0663 Telephone: (202) 514-4565 Facsimile: (202) 305-0506 Email: [email protected] Attorneys for the Defendant THOMAS ZIA SARA CULLEY Trial Attorneys Natural Resources Section Environment and Natural Resources Division United States Department of Justice Washington, D.C. 20044 OF COUNSEL: Janet Goodwin Angela Kelsey Office of the Solicitor United States Department of the Interior

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TABLE OF CONTENTS A. B. C. JOHN DOE AND JANE DOES SHOULD BE REMOVED . . . . . . . . . . . . . . . . . . . . . . 1 DISMISSAL OF CURRENT PLAINTIFF-INTERVENORS . . . . . . . . . . . . . . . . . . . . . . 2 THE REQUEST TO ADD ADDITIONAL PARTIES SHOULD BE DENIED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 THE REQUEST TO INTERVENE, PURPORTEDLY BY A MINOR, SHOULD BE DENIED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

D.

E.

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TABLE OF AUTHORITIES FEDERAL CASES Cherokee Nation of Oklahoma v. United States, 69 Fed. Cl. 148, 152 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7 Deukmejian v. Nuclear Regulatory Com'n, 751 F.2d 1287, 1318 (D.C. Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Enk v. Brophy, 124 F.3d 893, 895 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Fields v. United States, 191 Ct. Cl. 191, 423 F.2d 380, 383 (Ct. Cl. 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Fort Sill Apache Tribe of State of Oklahoma v. United States, 201 Ct. Cl. 630, 477 F.2d 1360, 1360-64 (Ct. Cl. 1973) . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Hoffmann-LaRoche v. Sperling, 493 U.S. 165, 170, 171 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9 NAACP v. New York, 413 U.S. 345, 366 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Northern Paiute Nation v. United States, 10 Cl. Ct. 401, 404, 408 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Com'n, 760 F.2d 1320 (D.C. Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Upper Chehalis Tribe v. United States, 140 Ct. Cl. 192, 155 F. Supp. 226 (Ct. Cl. 1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Wolfchild v. United States, 68 Fed. Cl. 779, 797 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 FEDERAL STATUTES 28 U.S.C. § 1505 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 FEDERAL RULES RCFC 17(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 RCFC 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 iii

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RCFC 5.2(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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Defendant, the United States, submits this response to the Vassar Group's Motion to Amend its Complaint (Dkt No. 451). The Vassar Group moves to amend its Complaint in Intervention by: (1) (2) dismissing all John and Jane Does; removing the names that Plaintiffs requested be incorporated into Plaintiffs' Proposed Fourth Amended Complaint from the Vassar Complaint; and (3) adding over 150 additional intervenors to the case.

As it explains in greater detail below, the United States does not oppose the dismissal of the purported John Doe and Jane Doe intervenors. The United States also does not oppose, in principle, the dismissal of any other members of the Group or the removal of their names from the "Vassar Group's" Complaint in Intervention, although, as it explains infra, any such removal is at the parties' risk. The United States opposes the request to add any additional intervenors to the case and notes, in addition, that one of the proposed intervenors is described as a minor, who has no capacity to sue or move the Court for intervention. A. JOHN DOE AND JANE DOES SHOULD BE REMOVED The United States does not object to the removal from the Vassar Group's Complaint of all John Does and Jane Does. The Vassar Group's assertions, in their November, 2006, response to the United States' motion to compel disclosure of the identities of purported John and Jane Doe parties, established that all of the Group's purported John and Jane Doe "intervenors" were non-existent placeholders, "an estimate" of "potential unknown Plaintiff's [sic]," [Dkt. 324, at 2.] and not actual persons. As this has Court noted, its procedures do not permit placeholder John Does.

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B.

DISMISSAL OF CURRENT PLAINTIFF-INTERVENORS The Vassar Group requests that some parties be removed from its Complaint in

Intervention in the event that the Court accepts Plaintiffs' Proposed Fourth Amended Complaint, filed by Erick Kaardal, Esquire. The Vassar Group failed clearly to identify those parties by name in their motion. Likewise, it is not clear which of the persons who sought to join in the original Complaint via Plaintiffs' Motion to Amend Third Amended Complaint (Dkt. No. 406) are members of the so-termed "Vassar Group" who sought, and were granted intervention, via the Court's August 22, 2006, Order. Plaintiffs' motion (Dkt. No. 406), which is still pending, did not specifically mention the Vassar Group or a desire to subsume the members of that group into Plaintiffs' group. The United States does not object, in principle, to the dismissal of any of the PlaintiffIntervenors who are listed as Plaintiffs in the caption of Plaintiffs' Proposed Fourth Amended Complaint. No party should be listed as a plaintiff or plaintiff-intervenor in more than one plaintiff "group" or more than one pending Complaint, or in proposed pleadings filed by two separate counsel. The United States notes, however, that it has opposed Plaintiffs' Motion to Amend Third Amended Complaint (Dkt. No. 406). See Def.'s Resp. (Dkt. No. 418). Defendant's Response to the instant motion does not alter its opposition to Plaintiffs' motion to add more parties to the case. The United States' consent to the removal of any party from the Vassar Group's Complaint in Intervention is without prejudice to its position that the Court should not accept Plaintiffs' Fourth Amended Complaint at all. In short, those who request dismissal from the Vassar Group's Complaint in Intervention now bear the risk that if they are removed from the Vassar Group, they may not be permitted to re-join the case via Plaintiffs'

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Proposed Fourth Amended Complaint. This situation, wherein some of the same persons who sought intervention through one set of lawyers and one pleading1/ have also sought to be joined as Plaintiffs represented by another set of lawyers, and filed, through those lawyers, a different, separately-filed proposed pleading2/ is cause for concern, especially as the persons involved have not been clearly identified. This situation appears almost guaranteed to lead to further motions or, at the very least, the need for the Court, as well as the parties, to expend more time and resources to determine who is doing what. It underscores the need for finality respecting the joinder of plaintiffs, as this Court contemplated when it set the July 12, 2006, deadline. Furthermore, although it is far from clear, it appears from comparing the respective captions of the Motion to Amend and the proposed First Amended Complaint, that the goal of the proposed amendment may be to join all of the Vassar Group's Plaintiff-Intervenors who were already granted intervention to the group of "original" Plaintiffs represented by Mr. Kaardal, while bringing in a completely new group of people as a new version of the so-termed "Vassar Group," via the Complaint in Intervention filed by other individuals (until now referred to as the Vassar Group) in July 2006. This is not an "amendment" to the Complaint in Intervention (which should be dismissed if the persons who filed it now all wish to abandon it as they seek to join Mr. Kaardal's Complaint), but rather an attempt to use the existing (and, apparently, abandoned) Complaint in Intervention as a vehicle to bring new parties into the case. Just as

1/

Motion to Intervene of the Vassar Group filed July 17, 2006, Dkt. No. 203, granted by the Court on August 22, 2006 as Dkt. No. 258.
2/

Plaintiffs' Motion to Amend Third Amended Complaint filed January 19, 2007 (Dkt. No. 406) and Plaintiffs' Proposed Fourth Amended Complaint filed January 19, 2007 (Dkt. No. 407) 3

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John and Jane Does may not be used as placeholders, the Complaint in Intervention should not be used as a mere vessel that can be emptied and filled again with a completely different set of plaintiff-passengers. The United States is prejudiced by the continual shuffling of parties and shifting of one of the most basic elements of the landscape of any case: who is suing it. No defendant, nor the Court, nor any other party should have to proceed in such uncertainty regarding who the parties are, and who represents them.3/ C. THE REQUEST TO ADD ADDITIONAL PARTIES SHOULD BE DENIED The Vassar Group's Motion seeks intervention in the case on behalf of additional potential Plaintiff-Intervenors numbering over 150 individuals, despite the Court's deadline of July 12, 2006, for filing motions to intervene. This Court should deny the motion, because the deadline for intervention passed over nine months ago and movants have not shown good cause why they should be permitted to intervene after the twice-extended deadline.4/ To grant the

3/

The various papers filed regarding which lawyer or lawyers represent the so-termed AbdoArrow Group, and who its members are, presents another example of this untenable situation. See Dkt. Nos. 424, 429, 430, 431, 435, 438, 447. Aside from the timeliness issue, the United States continues to maintain that claims brought by Plaintiffs, including these potential Plaintiff-Intervenors, are not proper claims within the meaning of the Indian Tucker Act, 28 U.S.C. § 1505, capable of being brought by an "identifiable group of American Indians." Defendant will not reiterate all its arguments on that jurisdictional issue here, but reserves all of its defenses, including but not limited to its defenses on this issue. Defendant notes that the Indian Tucker Act "group claim" requirement focuses on the nature of the claim. The claim must be communal, i.e. owned by the group, not by individuals collected together. Fields v. United States, 191 Ct. Cl. 191, 423 F.2d 380, 383 (Ct. Cl. 1970); Northern Paiute Nation v. United States, 10 Cl. Ct. 401, 404, 408 (1986). Group claims are grounded in wrongs done to or harm suffered by the group, not wrongs inflicted on or damages sustained by its individual members. Fort Sill Apache Tribe of State of Oklahoma v. United States, 201 Ct. Cl. 630, 477 F.2d 1360, 1360-64 (Ct. Cl. 1973); see also Upper Chehalis Tribe v. United States, 140 Ct. Cl. 192, 155 F. Supp. 226 (Ct. Cl. 1957). The United States 4
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motion to intervene would be inconsistent with the principle expressed in Hoffmann-LaRoche v. Sperling, 493 U.S. 165, 170, 171 (1989) that the Court should oversee the joinder of additional parties in an orderly manner, a responsibility that includes setting cutoff dates, "as [the Court] was bound to do if the action was to proceed in diligent fashion." 493 U.S. at 172. This lawsuit was filed in 2003. The subject matter of the litigation was apparent from Plaintiffs' Complaint and from the Court's published decisions of October 27, 2004, and December 16, 2005. The Court twice extended the deadline for intervention in this case. It supervised the contents and publication of notice to be provided by the Plaintiffs to potential "lineal descendants." When it extended to July 12, 2006, the deadline for filing motions to intervene, it ordered that anyone who sought intervention after that date had to show good cause for his or her late application. See Dkt. No. 166. Yet the Vassar Group's request to add additional persons was filed nine months late, on April 18, 2007. Rule 24 makes timeliness a threshold requirement of any motion to intervene. RCFC 24. See, e.g., Cherokee Nation of Oklahoma v. United States, 69 Fed. Cl. 148, 152 (2005). "`Timeliness is to be determined from all the circumstances. And it is to be determined by the court in the exercise of its sound discretion.'" Id., quoting NAACP v. New York, 413 U.S. 345, 366 (1973). "The court's determination as to timeliness `will not be disturbed' `unless that discretion is abused.'" Cherokee Nation, supra, 69 Fed. Cl. at 152, quoting NAACP, supra, 413 U.S. at 366.

maintains its position that the claims in this case are not owned communally or tribally but instead are claims of alleged wrongs to individuals.

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In this case, the question whether any motion to intervene is timely must be considered against the background of this Court's extensions of the intervention deadline, and the requirement that movants show "good cause" for late filing. The Vassar Group's Motion fails to provide any basis upon which this Court reasonably could conclude that "good cause" exists for the untimely motion to intervene.5/ In essence, the Vassar Group alleges that these proposed Intervenors "were unable to secure representation and provide their family documentation prior to the deadline set by this Court." Vassar Group's Mot. at 4. The Vassar Group's vague allegations about difficulty in obtaining family documentation do not constitute "good cause" in the context of this long-pending case. In its motion to intervene, the group attempts to establish the potential Intervenors as lineal descendants by showing that they are related to individuals "already identified as plaintiffs not previously designated and lineal descendants who did not receive notice of the pending lawsuit. . . ." Vassar Group's Mot. at 8. Yet the group offers insufficient information to explain why the same method of obtaining documentation was not available to them over nine months ago or why they needed "family documentation" to establish that they are related to other intervenors. Further, the conclusory allegations that certain individuals had difficulty securing legal representation to intervene in this lawsuit do not rise to the level of "good cause" permitting the

On the very first page of its motion, the Vassar Group states: "The Vassar Group make this motion based on a similar argument as set forth in Plaintiff's Motion to Amend Third Amended Complaint to Add and Remove Certain Named Plaintiffs filed by Plaintiffs Counsel, Mr. Erick G. Kaardal, on January 19, 2007." Incorporation by reference is prohibited by RCFC 5.2(b)(3), which provides in pertinent part that "[a] brief or memorandum previously filed may not be incorporated by reference; any such incorporation will be disregarded." Therefore, the merits of the Vassar Group's Motion rests on the arguments the group asserts in its own motion, not those that may have been asserted by other parties in other papers. 6

5/

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intervention of a group of over 150 additional plaintiffs. "The inability to retain counsel and experts before expiration of the prescribed time period constitutes no legal justification for [the proposed intervenors'] delay. If it did, the principle of finality underlying filing deadlines, statutes of limitations and legal time bars would be rendered subordinate to the financial and practical vicissitudes of individual litigants." Deukmejian v. Nuclear Regulatory Com'n, 751 F.2d 1287, 1318 (D.C. Cir. 1984).6/ Although "courts will [generally] accept as true all well-pleaded, non-conclusory allegations in [a] motion to intervene," one of the factors the Court should consider is "the length of time during which the would-be intervenor actually knew or reasonably should have known of its right to intervene." Cherokee Nation, 69 Fed. Cl. at 152-53. Movants' allegations about when certain members of the group contacted other legal counsel regarding this case show that they were on notice of the existence of this lawsuit from its inception. For example, "[s]everal of the Plaintiffs listed on Exhibit `A' under Lucy Otherday were initially represented by the Mohrman & Kaardal and Kettering Law Firms," but were not included on the Plaintiffs' Amended Complaint, which was filed on January 22, 2004, due to failure to provide appropriate documentation in a timely fashion. Vassar Group Mot. at 4.7/ The Vassar Group's Motion does not state why these individuals have waited over three years after the filing of Plaintiffs' Amended Complaint to attempt to secure intervention. Given the timeliness requirement for

A separate portion of Deukmejian v. Nuclear Regulatory Com'n, 751 F.2d 1287, 1318 (D.C. Cir. 1984) was vacated by San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Com'n, 760 F.2d 1320 (D.C. Cir. 1985) (vacating section III. B).
7/

6/

The Vassar Group's Motion does not make clear which individuals it is referring to in this statement. 7

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intervention under Rule 24, the Orders from this Court requiring that "good cause" be shown as part of any motion to intervene after the various deadlines had passed, and the Court's responsibility to ensure "orderly" joinder, movants' allegations do not establish good cause for additional persons moving to intervene over nine months after the twice-extended deadline. Furthermore, contrary to movants' assertions, prejudice to the United States will result from the addition of individuals to the lawsuit nearly ten months after the extended deadline. As noted above, this litigation began over three years ago, and it has generated a substantial volume of filings: over 451 docket entries in this Court including a number of Opinions and Orders from the Court related to threshold issues. The continual addition of parties to this case is disruptive and prejudices the parties' rights and interests in resolving the litigation in a timely fashion. The need for the Defendant and the Court to address the several late-filed motions for intervention has prevented the case from proceeding more expeditiously, prejudicing all parties. Keeping track of the changing names and affiliations of the persons named as Plaintiff-Intervenors, and their varying allegations and disposition of their motions to the Court, is burdensome and logistically difficult.8/ This is all the more true where, as here, the various papers raise unresolved questions regarding the identities of intervenors and movants for intervention. Moreover, the United States is entitled to have certainty and closure respecting the number and identities of the persons who are suing it in this action, as well as respecting the claims brought by those persons. Likewise, the Court and the other parties are entitled to

8/

Defendant requested most counsel for the various intervenor groups to provide undersigned counsel's office with an electronic list of the names of the plaintiff-intervenors whom they represent in this litigation. Two letters were sent to the Vassar Group's counsel, one on September 27, 2006, and one on December 8, 2006, but Defendant received no response and no electronic list. 8

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certainty and closure regarding the number and identities of all parties. The Hoffman-LaRoche v. Sperling case, on which this Court relied, in large part, for its authority to issue notice concerning this suit to potential plaintiffs (Wolfchild v. United States, 68 Fed. Cl. 779, 797 (2005) ("Wolfchild II"), endorses the application of cutoff dates set by the Court in advance, to ensure that joinder proceeds in an orderly fashion. Hoffman-LaRoche, supra, 473 U.S. at 172. To grant intervention under the circumstances here, long after the Court's cutoff date, would contravene the principle of ensuring "orderly" joinder, insofar as movants seek to add over 150 potential intervenors. D. THE REQUEST TO INTERVENE, PURPORTEDLY BY A MINOR, SHOULD BE DENIED There is an additional and independent reason why the Court should deny the request to intervene of "the Plaintiff listed under Mary LaBatte on Exhibit `A' [who] is the minor child of Sidney Dean LaBatte, who is named in Plaintiffs' Fourth Amended Complaint." Vassar Group's Mot. at 7. A purported minor has no capacity to bring a motion or file a Complaint in

Intervention on his or her own behalf. T.W. by Enk v. Brophy, 124 F.3d 893, 895 (7th Cir. 1997) ("To maintain a suit in federal court, a child or mental incompetent must be represented by a competent adult.") (citing Gardner by Gardner v. Parson, 874 F.2d 131, 137 n. 10 (3d Cir. 1989); 4 Moore's Federal Practice § 17.20[1], 17-87 (3d ed. 1997)). He or she can only move to intervene, or sue, through his or her parent or next friend (see, e.g., RCFC 17(a)), yet no parent or next friend has moved or filed a proposed Complaint in Intervention on the minor's behalf. Movants have not pointed to any authority to support the proposition that a minor (or anyone else who lacks the capacity to sue) may "intervene" in a case independently (i.e., not through a parent or next friend) on the basis that his or her parent or next friend is a plaintiff (or 9

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seeks to become a plaintiff) via a separate Complaint in the case. Rule 17(c) of the Rules of the Court of Federal Claims permits a representative to sue on behalf of an infant, but provides no basis to for the minor to purport to sue separately, via a claim made in a separate complaint, filed by different counsel. Moreover, the purported parent or next friend of the minor at issue here is not even a party to the case yet, him or herself. Instead, as far as Defendant can discern, Sidney Dean LaBatte is a person who, through lawyers other than those who have moved for intervention on the minor's behalf, sought to join the case and is listed on Plaintiffs' Proposed Fourth Amended Complaint, filed by Erick Kaardal, Esquire, January 19, 2007 [Dkt. No. 407]. As noted above, Defendant has opposed the filing of the proposed pleading that Plaintiffs desire to have accepted by the Court as their Fourth Amended Complaint, and the joinder of the additional persons listed on it. Movants did not even attempt to explain this anomalous situation: a minor, who by definition lacks capacity to bring suit on his or her own behalf, purporting to intervene, based on the listing of his or her parent on the caption of a different proposed amended complaint, filed by other counsel. The Court should reject the request for the minor to intervene. E. CONCLUSION The Vassar Group's Motion to Amend their Complaint (Dkt No. 451) should be denied insofar as it attempts to add over 150 proposed Plaintiff-Intervenors. The United States does not oppose the removal of the John Doe and Jane Doe intervenors or the removal of parties from the Vassar Group's Complaint in Intervention in the event that the Court accepts Plaintiffs' Proposed Fourth Amended Complaint, filed by Erick Kaardal, Esquire.

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Dated: April 26, 2007.

Respectfully submitted, MATTHEW J. MCKEOWN Acting Assistant Attorney General Environment and Natural Resources Division /s Laura Maroldy by Sara E. Culley LAURA MAROLDY Natural Resources Section Environment and Natural Resources Division United States Department of Justice Benjamin Franklin Station, P.O. Box 663 Washington, D.C. 20044-0663 Telephone: (202) 514-4565 Facsimile: (202) 305-0506 Email: [email protected] Attorneys for the Defendant THOMAS ZIA SARA CULLEY Trial Attorneys Natural Resources Section Environment and Natural Resources Division United States Department of Justice Washington, D.C. 20044

OF COUNSEL: Janet Goodwin Angela Kelsey Office of the Solicitor United States Department of the Interior

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CERTIFICATE OF SERVICE I hereby certify that on this 26th day of April, 2007, I directed that the NOTICE OF ELECTRONIC FILING of the foregoing DEFENDANT'S RESPONSE TO VASSAR GROUP'S MOTION TO AMEND COMPLAINT be sent by U.S. MAIL, FIRST-CLASS POSTAGE PREPAID, to: Kermit A. Belgarde, # 905798 Airway Heights Correction Center NORA UNIT B-39-L P.O. Box 1839 Airway Heights, WA 99001-1839 Francis Felix P.O. Box 141232 Minneapolis, MN 55414 Philip Baker-Shenk Holland & Knight, LLP 2099 Pennsylvania Avenue, NW Suite 100 Washington, DC 20006

Dated: April 26, 2007

/s Laura Maroldy by Sara E. Culley Laura Maroldy